Nandu S/O Soma Kamdi vs State Of Mah. Thr. Superintendent ...
2021 Latest Caselaw 10705 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                            NAGPUR BENCH, NAGPUR.


                       CRIMINAL WRIT PETITION NO. 499/2021


          Nandu S/o Soma Kamdi,
          C-5483, Central Prison, Amravati
          District Amravati
                                                                    .... PETITIONER

                                    // VERSUS //

          State of Maharashtra,
          Through Superintendent of Central Prison,
          Amravati, District Amravati
                                                                   .... RESPONDENT


  *******************************************************************
            Shri A.Y. Sharma, Advocate (appt.) for the petitioner
              Ms. N.R. Tripathi, APP for the respondent/State
  *******************************************************************


                           CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

AUGUST 10, 2021

JUDGMENT : (PER:- AMIT B. BORKAR, J.)

1] Heard.

 2]               RULE. Rule made returnable forthwith.




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 3]               By this petition under Article 226 of the Constitution of India,

the petitioner is challenging the order dated 04/06/2021 rejecting

emergency parole leave of the petitioner.

4] The petitioner is a convict for the offence punishable under

Section 302 of the Indian Penal Code. He is directed to suffer rigorous

imprisonment for life. The petitioner has undergone imprisonment of more

than four years. The petitioner applied for grant of emergency parole under

Rule 19(1)(C)(ii) of the Maharashtra Prisons (Bombay Furlough and Parole)

Rules, 1959 on 08/05/2020. The respondent by the impugned order dated

04/06/2021 rejected the said application on the ground that there are

already arrangements made by the Jail Authorities to avoid infection to

Covid. It is also stated that since the petitioner has not been released earlier

on parole, he is not entitled for the benefit of Rule 19(1)(C)(ii) of the said

Rules.

5] The petitioner has therefore filed the present petition

challenging the order dated 04/06/2021. This Court on 23/07/2021 issued

notice to the respondent. The respondent has filed affidavit dated

31/07/2021. It is stated in the affidavit that the respondent has already

taken precaution regarding Covid-19 infection. It is also stated that the

petitioner has not been released earlier either on parole or furlough and

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therefore the petitioner is not entitled for the benefit of the notification

dated 08/05/2020.

6] We have carefully considered the impugned order. The reason

stated in the impugned order that the petitioner has not been released earlier

either on parole or furlough is no longer res-integra in view of the Division

Bench judgment of this Court in Criminal Writ Petition-ASDB-LD-VC

No. 65/2020 (Milind Ashok Patil Vs. State of Maharashtra decided on

16/07/2020). The Division Bench of this Court in para nos. 13 and 15 of the

said judgment has observed thus :-

"13. Thus, it is clear that the said amended provision is made for short period and is brought into existence for main object of reducing the overcrowding in the jail. However, while releasing the convicts on emergency parole in view of the declaration of epidemic under the Epidemic Diseases Act, 1897, it is also required to ensure that the said benefit cannot be extended to the prisoners likely to commit offence in case of temporary release i.e. habitual offenders or likelihood of absconding of such accused and in such case the emergency parole can be rejected. For ensuring this, it is provided that the convicts whose maximum sentence is above 7 years shall on their application be appropriately considered for release on emergency parole by the Superintendent of Prison, if the convict has returned to prison on time on last 2 releases (whether on parole or furlough). Therefore, the object while granting the emergency parole is to see that overcrowding in prison is reduced.

However, at the same time, it is to ensure that the habitual

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offender or prisoners who are likely to abscond are deprived of emergency parole and therefore, the aforesaid amended rule was brought into effect. However, if such convicts are never released either on furlough or parole previously or not released on 2 occasions either on furlough or parole and therefore, there was no occasion for them to return back within time on 2 occasions and therefore, not entitled for said benefit of emergency parole, such literal interpretation may lead to absurdity and in that event, there is no occasion to invoke condition imposed under the said amended Parole Rule.

15. Thus, it is clear that the condition mentioned in the amended clause (C)(ii) of convict returning back on time on last 2 releases will be applicable only if the convict is released on 2 occasions either on furlough leave or parole leave or their applications are rejected on the ground that they are habitual offenders or likely to abscond. In this behalf, it is significant to note that the difference between Clause (C)(i) and (ii). The clause (c)

(i) of the amendment which is applicable to convicted prisoners whose maximum punishment is 7 years or less provides that "application shall be favourably considered"; whereas clause (C)

(ii) which is applicable to the prisoners whose maximum sentence is above 7 years provides that "application shall be appropriately considered". To ensure that such convicts should not abscond, the said amended provision stipulates that once in every 30 days, the convicted prisoners shall report to the concerned police station within whose jurisdiction they are residing. If the convicts are not released on 2 occasions either on furlough or parole and/or their previous applications are not rejected either on the ground that they are habitual offenders or likely to abscond then the Authorities

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can still consider their applications for release on emergency parole. However, we make it clear that if the convicts are released on 2 occasions or on 1 occasion, either on parole or furlough previously and they are late in surrendering then they are not entitled for the benefit of the emergency parole. It is further clarified that the Authorities can impose suitable stringent conditions on the convicts who were never released on parole or furlough or released on 1 occasion and returned back within time, if they are otherwise entitled for the benefit of emergency parole."

7] In view of the judgment in the case of Milind Ashok Patil

(supra), there is no impediment in releasing the petitioner on emergency

parole leave.

 8]               Hence, the following order:-



                   (a)         The impugned order dated 04/06/2021 passed by

                               the respondent is quashed and set aside.



                   (b)         The respondent is directed to release the petitioner

                               on emergency parole leave of 45 days on such

terms and conditions as the respondent deems fit

and proper.

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                   (c)           Fees of the advocate appointed to represent the

petitioner is quantified at Rs. One Thousand Five

Hundred which shall be paid to him.

Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                   (JUDGE)                                      (JUDGE)




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